Obtaining evidence in England for overseas court proceedings – a recent reminder

Background

In Byju’s Alpha, Inc v OCI Limited and others [2025] EWHC 271 (KB), His Honor Judge Parfitt refused to grant orders which had been sought to obtain evidence for proceedings taking place in the United States Bankruptcy Court for the District of Delaware¹. The judgment highlights some key features of the process which need to be navigated carefully for a successful outcome.

In high level summary, in the Delaware proceedings the claimant (“Alpha”) was seeking to recover assets and losses said to arise from the fraudulent conduct of those who previously controlled its affairs. Its pleaded case in its Second Amended Complaint (the “Complaint”) made allegations against various defendants including the original recipients of the allegedly misappropriated money.

Alpha then learned about further transactions whereby some of that money had been passed on to an English company by the original recipients. However, the Complaint was not updated either to add pleaded allegations in relation to those further transactions, or to add the English company as a defendant or make any claims against it. (The English company and its related parties denied any wrongdoing.)

Alpha brought a successful motion whereby the Delaware Judge issued a Letter of Request (“LoR”) to the English court asking that the English company and two related parties be ordered to produce documents and give sworn testimony for the benefit of the Delaware proceedings. 

The LoR stated that "discovery from [the English company] will provide key information regarding the various fraudulent transfers of the [allegedly misappropriated money]… including any legitimate and lawful business reasons for doing so”, and that the evidence sought "will be highly relevant to and either probative or disapprobative of material facts relevant to the [Complaint]". The LoR also stated that because the Delaware defendants had failed to "disclose the current location of and what happened to the [relevant funds], the [Delaware court] considers that the most proportionate and effective way for Plaintiffs to obtain documents and answers they require is by making the Order sought". 

In turn, the documents sought from the English parties in the LoR included:

• "all communications with the [parties in the Delaware claim] relating to the [relevant funds]"; 
• "all documents and communications relating to the contemplation, negotiation, and execution of the transactions relating to the [relevant funds] …"; and
• "all documents and communications relating to the transfer, disposition, and location of the [relevant funds]".

The Legal Context

The Evidence (Proceedings in Other Jurisdictions) Act 1975 allows the English court to make orders for evidence to be obtained in England where this is pursuant to the request of a foreign court, and where the evidence is for the purposes of civil proceedings before that requesting court. 

However, the Act does not permit what would amount to discovery in US litigation or disclosure in an English litigation context. It can only be used to require a party to “produce … particular documents specified in the order" which are or are likely to be in that party’s possession, custody or power.

The English Judgment

The Judge recognised that the English court would need good reasons not to accede to a LoR from a US court, all the more so in a case of alleged international fraud. However, following a detailed consideration of the issues, the Judge declined to grant the orders sought in the LoR and set aside the initial orders which had been made ex parte. In summary:

• In the Judge’s view, the LoR was seeking to obtain information, not evidence for trial, and so was not something which the English court could approve.

The Judge drew an important distinction between information which is relevant to a claim in a general sense, and evidence. Evidence in this context is a particular category of otherwise relevant information which has probative value in relation to a factual allegation in the case. The subject matter of the LoR must be about the facts alleged in the relevant foreign proceedings, but here the Complaint did not allege any facts about the English company or the transactions in which it had been involved. 

The Judge felt that Alpha was really seeking more general information which might be relevant to any potential claim which Alpha may have against the English company – not evidence about allegations which it was currently making in the Delaware proceedings.

• Further, the scope of the documentation requested under the LoR failed the requirements of the 1975 Act. The LoR did not seek particular documents, but rather wide classes of documents, and this flaw could not be resolved by some editing to the wording. What is required is a description which is sufficiently certain so that the target knows the particular document or documents they need to provide; the applicant should not seek a class of documents in such a way that the target has to search and then consider whether any particular document falls within that class or not.
• The Judge also considered that to grant the orders would be oppressive to the English parties in the circumstances of this case. This was because the predominate consequence of making the orders would be to force the English parties to provide evidence that would be used to consider and/or frame a fraud claim against them and to answer questions about the underlying facts from which such a claim will emerge, but at a time when they did not know the actual claim to be brought against them. 

Takeaways

Whilst each case turns on its facts, this decision is a reminder of the need for any LoR to the English court to be tailored to the requirements of the relevant English legislation – in particular, that the request should focus on particular documents rather than seeking wide classes of documents more akin to a discovery/disclosure process, and should be directed to material which can be shown to be relevant to the allegations which the foreign court will have to decide upon in its proceedings.

As the Judge concluded, the process “cannot be used to obtain information which is to assist in the selection of facts to form the basis of a claim”.

Authored by John Tillman.